The Eighth Amendment – abortion and the law

 

Sir, – The Supreme Court has clarified in a recent case, M v Minister for Justice, that the unborn have no constitutional rights apart from the Eighth Amendment.

The British Abortion Act 1967 permits abortion where there is a risk to the physical or mental health of the mother. In 2016, there were 696,271 live births and 190,406 abortions in England and Wales.

Our Government is proposing that abortion should be permitted without restriction for the first 12 weeks of the life of the unborn, and in circumstances of risk to the physical or mental health of the mother, abortion up to where the life of the unborn child is viable outside of the womb, ie up to approximately the 23rd or 24th week of a pregnancy.

Therefore, our Government has proposed an abortion regime for this country that is comparable with that in Britain and more extensive during the first 12 weeks.

If the Eighth Amendment is repealed in circumstances in which the people know what is being proposed by the Government, it will, in effect, be impossible to challenge successfully the constitutionality of this expansive abortion regime, and it may prove very difficult to prevent a future Oireachtas from widening the grounds for abortion even beyond the current expansive proposal.

The citing of hard cases is not relevant to the proposal in this upcoming referendum. We are not being asked to vote for abortion in certain limited cases, we are clearly being asked to remove all constitutional rights from unborn humans.

We all value our own life. To set at nought the value given to the lives of any cohort of humans is chilling.

The enormity of the decision we are about to make as a people cannot be overstated. – Yours, etc,

SÉAMAS Ó TUATHAIL, AS;

MARY FAULKNER,

Former Dean of the School

of Law, King’s Inns, Dublin;

ELIZABETH

O’CONNELL, SC;

SHEILA O’RIORDAN, BL;

TABITHA WOOD, BL;

ÚNA NÍ CHATHÁIN, BL;

DÁITHÍ

Mac CÁRTHAIGH, BL,

ELIZABETH

MAGUIRE, BL,

GRAHAM QUINN, BL;

RODERICK MAGUIRE, BL,

EMILE DALY, BL;

LORCÁN E PRICE, BL,

Dublin 7.

Sir, – In his Opinion & Analysis article of March 14th, “Supreme Court has given us clear choice in abortion referendum”, William Binchy suggests that the health ground for access to abortion outlined in the Irish Government’s recently published General Scheme of a Bill to Regulate Termination of Pregnancy will lead to “abortion on demand”.

To illustrate his point, he refers to the “health ground” under the 1967 Abortion Act.

This Act, which applies in England and Wales and Scotland, is often referenced in Irish debates on liberalisation of abortion law.

However, such comparisons frequently misrepresent its content.

The Irish Bill would permit abortion on request in the first 12 weeks of pregnancy. However, between 12 weeks and viability, abortion would be available only on very restricted health grounds: where two doctors, one of whom must be an obstetrician, are satisfied that there is a risk of “serious harm” to a woman’s health. By contrast, under the 1967 Act, abortion is permitted until 24 weeks where two doctors are satisfied that the pregnancy poses a risk to a woman’s physical or mental health “greater than if the pregnancy were terminated” (Ground C).

This is not “abortion on demand”, as the woman’s decision is always formally subject to medical scrutiny. However, it sets a much lower threshold than that foreseen in the Irish Bill for abortions on health grounds at 12 to 24 weeks.

Abortion provided in accordance with best medical practice is invariably less risky than continuing a pregnancy to term, so in practice Ground C will invariably be met.

This is the ground under which the great majority of women, including Irish women, access abortion in Britain, with 92 per cent doing so within the first 12 weeks of pregnancy.

Other than in emergency situations, the Irish Bill would not permit abortion after viability, even in cases of risk to life or risk of serious harm to health. Instead, in keeping with current Irish medical practice, doctors would be required to attempt live delivery, and to ensure that the baby receives all necessary care.

Again, this differs from the 1967 Act, which permits abortion after 24 weeks in a narrow range of circumstances, including where two doctors are satisfied that it is necessary to prevent “grave permanent injury” to a woman’s health (Ground B).

However, fewer than 0.1 per cent of abortions take place under this ground. – Yours, etc,

Prof SALLY SHELDON,

Professor of Law,

University of Kent;

Dr SHEELAGH

McGUINNESS,

Reader in Law,

University of Bristol;

Prof EMMA CAVE,

Professor of

Healthcare Law,

University of Durham;

Dr RUTH

FLETCHER,

Senior Lecturer

in Medical Law,

Queen Mary University,

London ;

Prof MARIE FOX,

Queen Victoria Chair of Law,

University of Liverpool;

Dr JULIE McCANDLESS,

Senior Lecturer in Law,

University of Kent;

Prof JEAN McHALE,

Professor of

Healthcare Law,

University of Birmingham;

CIARAN MOYNAGH,

Partner,

McLernon Moynagh

Solicitors;

Dr CRAIG PURSHOUSE,

Lecturer in Law,

University of Liverpool;

Prof MICHAEL THOMSON,

Professor of Health Law,

University of Leeds;

Dr KATHERINE WADE,

Lecturer in Law,

University of Leicester.